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This weekend's New York Times Magazine has a feature story by Eyal Press on family leave in the U.S. The story is too long to properly summarize, but it discusses topics such as sex discrimination lawsuits under Title VII lawsuits based on stereotypical views of family obligations and the EEOC's recent guidance on that issue. The story is well worth a read, in part for several of real-life examples which, even to someone who reads about this area regularly, were eye-popping. Particular note should be made of the story's focus on Joan Williams (Hastings), who has been a major force in this area. Press describes Williams as:

. . . approaching rock-star status among the small but growing network of
lawyers and scholars who litigate or study family-responsibility
discrimination cases. . . . Williams has been racing across the country giving such speeches since
2000, the year her book “Unbending Gender” appeared. In the book, which
set in motion the legal trend that now consumes much of her time,
Williams argued that the growing tension between work and family was
not simply a product of economic necessity. It stemmed, rather, from a
marketplace structured around a increasingly outdated masculine norm:
the “ideal worker” who can work full time for an entire career while
enjoying “immunity from family work.” At a time when both adults in
most families had come to participate in the labor force, Williams
argued that this standard was unrealistic, especially for women, who
remained the primary caregivers in most households. . . .

Williams [said that] she wasn’t sure when she wrote the book
what the best remedy was. One possibility was legislation — subsidized
child care, generous parental-leave policies — of the sort many
European countries have. Another was for employees to take legal
action, an idea she described in the book’s most provocative chapter.
To show how discrimination can harm caregivers, Williams told the story
of a lawyer with sterling performance reviews who was passed over for a
promotion because she was a mother; management had assumed she wouldn’t
be interested and promoted an unmarried woman instead. Even though the
position was not given to a man, a court agreed the firm’s action might
constitute sex discrimination, not least because numerous fathers had
received such promotions. Negative assumptions about the capabilities
of women with children pervade the marketplace, Williams averred, and
can violate Title VII of the Civil Rights Act even when employers
insist their actions are not motivated by sexism.

“Unbending Gender” struck a nerve — soon after its publication,
Williams found herself fielding “a zillion invitations to speak” — but
its author admits she had “no idea” whether the legal theory she had
sketched out might catch on. There were plenty of skeptics, which is
not surprising. Unlike being black or female, after all, becoming a
parent is a choice, one that often limits an employee’s availability.
As she traveled across the country, Williams heard this frequently from
feminists convinced that courts would side with businesses in such
disputes. But she heard something different from the lawyers she met,
who seemed equally certain jurors would sympathize with workers
punished simply for trying to be responsible caregivers. Meanwhile,
with each passing day, more lawsuits kept being filed. Williams soon
established the Center for WorkLife Law, which emerged as the place to
go to learn more about the subject — not only for scholars and
journalists but also for employees, who started calling its hot line to
find out how they, too, might file a claim.

This article, part of an
interdisciplinary symposium on international delegation, analyzes
grants of authority to international organizations (IOs) to monitor
compliance with un-ratified treaties and non-binding norms and
standards. It
begins with a historical review of the different ways in which
officials and review bodies of the International Labor Organization
(ILO) to monitor compliance with treaties and recommendations that the
organization has adopted but that a member state has not ratified or
otherwise accepted as legally binding. The ILO membership has
repeatedly expanded these monitoring powers since the organization's
founding in 1919. It has done so both informally (by allowing ILO
officials to expand the scope of the initial delegation that
established the organization) and formally (by amending the ILO
constitution to codify and further enlarge these informal expansions of
the organization's monitoring authority). Taken together, these
developments challenge the conventional wisdom that the delegation of
authority to the ILO involves only modest sovereignty costs. The
article then uses the ILO's history to emphasize the importance of
delegations that authorize international bodies to monitor compliance
with nonbinding international rules. Such delegations often arise and
thrive outside of the formal channels of authority. This makes it
essential for scholars to look beyond treaty texts and institutional
design features to consider how power is actually exercised within IOs
and how the costs and benefits of international delegations change over
time. Finally, the article considers what insights the ILO offers for
delegations to other IOs. It argues that monitoring compliance with
unconsented-to legal rules is an alternative institutional response to
a problem that many IOs confront: how to ensure that all states
affected by a cooperation problem participate in the resolution of that
problem rather than free riding on the efforts of other countries.

Please pass this information on to others, especially those who may be
new to, or completely outside, legal academia. Last year, it was nice
that word of the event somehow reached a lot of aspiring profs,
non-profs, and others who really needed the work-in-progress audience
more than those of us who already have been prof'ing for a few years.
I hope we can draw a similar amount of new blood to this year's event.

In light of the success in Maryland and Suffolk County, New York, it is probably little wonder that a similar fair share health care bill is now being challenged under ERISA preemption principles in San Francisco (indeed, I predicted as much here). But there seems to be a new argument being emphasized in this litigation.

Now the San Francisco City Attorney's Office is in federal court
defending a law that's intended to bring about universal health care
coverage, and its lawyers insist they have found a way to overcome
federal pre-emption.

If U.S. District Judge Jeffrey White of the Northern District of
California agrees and grants a summary judgment motion the city filed
last week, some employment lawyers say the case would put San Francisco
at the forefront of a movement to shift more of the nation's spiraling
health care costs onto the shoulders of business . . . .

Though San Francisco's law is based on an employer-funded concept
that's similar to those in Maryland and New York, Vince Chhabria, a
deputy city attorney who's defending San Francisco's law in federal
court, said the city's alternative is "a totally different animal."

He argues that the alternative options in the Maryland and New York
laws fell short because they required businesses to pay the government
without the government directly giving them anything in return.

Under the San Francisco law, employers who don't offer private
insurance would still have to pay an equivalent amount to the
government. But their employees would get discounted health benefits
provided by the city in exchange.

An interesting argument that I did not foresee being brought up. However, I am still skeptical that this "better alternative" approach will allow the law to survive ERISA preemption. At the end of the day, the law still interferes too much with the administration and management of ERISA health plans under the current standards. A mandate is a mandate.

OK, employers can give a little latitiude for today's younger employees who are text message obsessed, right? But I don't think anyone can blame this Polish employer for saying enough is enough (via Yahoo! News and AP):

A Polish bus driver has been fired for sending 38,000 text messages on
his company cell phone in a losing effort to win contest jackpot, a
spokesman said Thursday.

Leszek Wojcik, a bus driver in the northwestern Polish city of
Slupsk, ran up a tab of some 94,000 zlotys ($34,000) with his text
messages while trying to win a 100,000-zloty ($36,000) SMS contest that
ended June 30, Slupsk city transport spokesman Hubert Boba told The
Associated Press.

Boba said a city bus drivers' monthly company phone bill is supposed to be limited to 15 zlotys ($5).

Wojcik sent an average of 1,200 SMS text messages a day, each costing 2.40 zlotys ($0.86), on his work cell phone.

PlanSponsor.com is reporting this morning that Rep. George Miller is introducing a bill which would require mandatory disclosure of mutual fund fees to 401(k) participants. Here are the details:

Congressman George Miller (D-California) has introduced the 401(k) Fair
Disclosure for Retirement Security Act of 2007 "to ensure that American workers
have clear and complete information about fees that could be cutting deeply into
their 401(k)-style retirement savings," according to a press release. The legislation would require plan administrators to disclose, in clear
and simple terms, all fees charged to plan participants each year; call for more
detailed information on investment strategies, risks, and returns when
participants sign up for their company's 401(k); require the inclusion of a
least one “lower-cost, balanced index fund” in the plan's menu; ensure that all
fees and conflicts of interest are disclosed annually to plan sponsors; and
enhance the Department of Labor’s oversight of 401(k) plans.

This development can hardly be considered surprising given the attention that the fee issue has received over the past couple years. More information about the bill is available here.

The BNA Daily Labor Report (subscription required) this morning reports that the Texas Attorney General has filed a complaint against two companies for allegedly forcing employees to join a union or pay dues in violation of the state's right to work laws. State right to work laws are expressly allowed under the NLRA and permit nonmember employees not to have support the union even through agency fees.

BNA further reports:

What drew the state into the cases, Kelley said, was a determination last month by a federal administrative law judge that the state had an interest and jurisdiction in the El Paso case where an employee was suspended for refusing to pay union dues because the facility was not an "exclusive federal enclave." . . . .

"The law guarantees important right-to-work protections for Texas workers," [Attorney General] Abbott said in nearly identical statements announcing the suits. "Texans have the right to work without having to join a labor union or pay union dues. The Office of the Attorney General will aggressively enforce Texas' right-to-work laws and will take all necessary measures to protect workers' freedom from compulsory union membership."

The employer at Bishop's University has walked away from the
bargaining table and announced a lock-out of all unionized academic and
non-academic staff.

Negotiators for Bishop's University Corporation and the
Association
of Professors of Bishop's University (APBU) began round-the-clock
negotiations on Sunday, July 22, and, after considerable progress was
made at all tables, the union prepared a new proposal for the employer.

Before allowing the union to table the proposal, the employer
walked away from the bargaining table and announced the lock out of all
unionized employees, non-academic and academic, beginning at 12:01 a.m. July 26.

How's this for a brilliant Title VII fact pattern for an Employment Discrimination Law exam? (Stop salivating my summer employment discrimination students, this won't be on the exam (but at least I know you read the blog like I told you to!)). In any event, it actually will be a First Amendment retaliation question, but a similar analysis to mixed motive cases under Title VII.

Nearly six years after Ward Churchill compared some American victims of
terrorism to Nazi bureaucrats, the Board of Regents of the University
of Colorado voted Tuesday night to fire him. But the controversial
ethnic-studies professor said he was "ready to roll" into the next
stage of his struggle with the university: a court of law.

According to university administrators, it was findings that
Mr. Churchill had committed research misconduct -- and not the
notoriety of Mr. Churchill's opinions -- that fueled the decision.

So Churchill must jump through the following hoops to succeed on a First Amendment Pickering claim: (1) that he was not speaking pursuant to official duties (easy); (2) that he was speaking on a matter of public concern (pretty obvious); (3) that his rights to free speech outweigh the University's right to run an efficient workplace (not so obvious); (4) that his speech was the motivating and substantial reason for his termination (will depend on all the evidence); and (5) Colorado would not have made the same decision even in the absence of the protected speech (only if Churchill can show that he did not engage in research misconduct that amounted to cause for his termination).

In talking about this case with Brian Leiter (Texas), he points out that Colorado has always claimed that this case is about academic misconduct and not speech. Does that mean step 5 will be the only issue in question?

First, I don’t think legally it would matter what prior position Colorado has been taking publicly (I mean they didn’t
waive the argument since they haven’t filed an Answer), but maybe it would not
be a good prudential strategy from the standpoint of public relations and
because it might undermine their main argument that they agree that the speech was protected, but the firing had nothing to do with speech.

In any event, I would expect the university to use every
argument at their disposal, including that Garcetti v. Ceballos means that since this was
speech pursuant to official duties there is no First Amendment protection and,
even if there is a First Amendment right, that that right under the Pickering balance (Step 3 above) is
substantially outweighed by the university’s interest in maintaining an
efficient public service without disruption of working relationships, the university's image, and the values it seeks to embrace.

In short, litigation strategy is often different than
public relations strategy. Overall, though, my point is that public employees have a steep hill to climb in these First Amendment public employee cases because of all the hoops that need to be jumped through. Those not familiar with public employee terrain might be surprised how much different this framework is than for citizen claims under the First Amendment.

Interesting post over at Balkinization by Ian Ayres. The post surrounds the selection of Drew Carey as the new host to replace Bob Barker at "The Price is Right" game show. As is well know, Rosie O'Donnell also indicated her interest in being selected as the new host.

Ian points out some troubling facts emerging from the selection of Carey:

A few weeks ago, when retiring icon Bob Barker
was asked at the Daytime Emmy about who might replace him, he mentioned
Rosie O'Donnell:

"I believe they're going to have a meeting with Rosie. She knows the show. There's no doubt in my mind she could do the show."

Only auditioned men? Is that because there is something about the essence or mission about The Price is Right as a business that requires a man to be host? In other words, is being a man a bona fide occupational qualification (bfoq)? Ian points out:

The EEOC Guidelines do allow intentional sex
discrimination in hiring an actor or actress where the sex-specific
roles are necessary for the "purpose of authenticity or genuineness,"
see 29 C.F.R. § 1604.2(a)(2).

They better hope this applies (and I doubt it very much) because if not, it sounds like Rosie O'Donnell would have a pretty solid sex discrimination claim under Title VII.

In the ERISA case due to be heard by the Supreme Court this Fall, LaRue v. DeWolff, Boberg & Associates, et al. (docket 06-856) (which we have written about previously here and here), a new development may cause the Court to dismiss the case as moot.

Attorneys for a nationwide management consulting firm involved in a
case the Supreme Court is scheduled to hear at its next Term have urged
the Justices to dismiss the case as moot. In a motion filed on Monday,
counsel for DeWolff, Boberg & Associates Inc. said that the
individual who took the case to the Supreme Court has withdrawn all of
his funds from his pension plan account, leaving him "with no legally
cognizable interest in the outcome of the case." [The motion is here] . . . The individual involved has a right to file a response . . .

Thomas P. Gies, a Washington attorney for DeWolff Boberg, told the
Court that, in assembling materials for a merits brief in the case, his
office "discovered that on July 22, 2006, while the case was still
pending before the Fourth Circuit," LaRue withdraw all of his funds
from his account.

So why is the claim moot if LaRue withdrew his funds? According to the motion filed by Geis:

The ERISA provision at issue in the first
question raised allows a lawsuit by "a participant, beneficiary, or
fiduciary," the motion said. There is no legal basis, the motion
contended, for allowing a former participant in a defined contribution
plan to bring a lawsuit under that section to recover damages measured
by lost profits. The Supreme Court, it noted, has not addressed the
issue.

The provision at issue in the second legal claim, according to the
motion, also makes that issue moot. The claim LaRue made under that
section, it noted, was that he was only seeking to have the plan
reflect what would have been his interest in it. Now that he is a
former plan participant, the motion contended, he has no legally
cognizable interest in a recovery by the plan.

In the alternative, DeWolff Boberg has asked the Court to decide an issue that continues to divide the circuits: "whether a worker who is no longer a participant in an ERISA plan has a
right to sue for damages measured by lost value in his plan."

FWIW, I agree with a comment to the SCOTUSblog post which states: "Petitioner's claim accrued at the time respondents failed to perform
their duties. The fund would have had more money and petitioner's
balance would have been more than $119,000."

Thanks to Ross Runkel and his Employment Law Memo for alerting me to the recent 9th Circuit case of Poland v. Chertoff, No. 05-35508 (9th Cir July 20, 2007), in which the court joins the majority of circuits in rejecting the 4th Circuit's cat's paw approach to vicarious liability. The case concerned a disparate treatment ADEA case where the plaintiff had alleged constructive discharge and retaliation.

Ross has the details:

One issue on appeal was the rule to govern
when a subordinate's bias will be imputed to an employer. The court rejected the
"but for" test as insufficient in this context to impute the subordinate's bias
to his employer. The court also rejected the employer's suggestion to follow the
"cat's paw" approach of the 4th Circuit as too limited. The court held that if a
subordinate, in response to an employee's protected activity, set in motion a
proceeding by an independent decisionmaker that led to an adverse employment
action, the subordinate's bias was imputed to the employer if the employee could
prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved
in the decision or decisionmaking process. The court stated this was consistent
with the law in the majority of circuits.

David Scott of Scott + Scott and lead litigation counsel in Hohider v. UPS, 04-363 (W.D. Pa. July 16, 2007), brings word that the Western District of Pennsylvania has just certified a nationwide action on behalf of certain UPS present and former employees. This is a matter of first impression in application of the class-action mechanism to this type of ADA case.

The action challenges an alleged systemic policy and practice at UPS of not allowing employees back to work after an injury or medical leave of absence absent a doctor's note indicating the employee is "100% healed" or has no work restrictions. Of course, if true, such conduct would amount to disability discrimination and failure to reasonably accommodate the employees in question.

Clearly, certification of this large class goes a long way in having the case come out favorably in favor of the class plaintiffs.

Attached is a press release from Scott & Scott and a link to the 204-page class certification opinion in the case can be found at the link above.

Do you have papers? Immigrant workers
increasingly face this question in civil litigation. Citing the Supreme
Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, which
stated that undocumented immigrants cannot recover monetary damages for
labor law violations, employers argue that many employment protections
no longer apply to this group of workers. Consistent with this
argument, employers pose immigration-related questions during
discovery, causing an already uneasy class of plaintiffs to cease suing
employers in order to avoid answering questions about their immigration
status. Professor Cunningham-Parmeter explains how status-based
discovery not only inhibits immigrant employees from vindicating their
workplace rights but also undermines the employment protections at
issue. Without an effective method for stemming the flood of
status-based inquiries born of Hoffman, immigrants will continue to
opt-out of civil litigation, unwilling to assert even the strongest
claims for workplace violations. Cunningham-Parmeter argues that the
Fifth Amendment privilege against self-incrimination provides the most
effective method for serving immigrants' competing litigation
interests: protection from intimidation and vindication of substantive
employment rights. He contends that the policies in support of
extending the privilege to the civil context play a prominent role in
immigrant-initiated litigation. Civil libertarian values traditionally
ascribed to the privilege such as fairness, privacy, and the prevention
of cruelty are threatened when courts grant defendants unfettered
access to status-based discovery. After outlining the policies and
principles of the privilege, Cunningham-Parmeter explains the process
and potential consequences of invocation, including the adverse
inferences a court may draw from the witness's silence.
Cunningham-Parmeter outlines factors counseling against adverse
inferences such as the unreliability of silence and the irrelevance of
immigration status to most employment claims. Even if courts infer that
silent plaintiffs are undocumented immigrants, Cunningham-Parmeter
argues the outcome would improve the current state of affairs by
clarifying the courts' position on the relevance of status. Thus, the
privilege serves both protective and explanatory functions by guarding
the witness's status-based information, while requiring a determination
of immigrant-based employment rights in the post-Hoffman era.

Judith Warner, in a New York Times op-ed piece, discusses the availability of part-time work for mothers (and fathers to a lesser extent). She makes some interesting points and notes current efforts by Sen. Kennedy and Rep. Maloney to enact a workplace flexibility law:

Only 24 percent of working mothers now work part time. The reason so
few do isn’t complicated: most women can’t afford to. Part-time work
doesn’t pay. Women on a reduced schedule earn almost 18 percent
less than their full-time female peers with equivalent jobs and
education levels, according to research by Janet Gornick, a professor
of sociology and political science at City University of New York, and
the labor economist Elena Bardasi. Part-time jobs rarely come with
benefits. They tend to be clustered in low-paying fields like the
retail and service industries. And in better-paid professions, a
reduced work schedule very often can mean cutting down from 50-plus
hours a week to 40-odd — hardly a “privilege” worth paying for with a
big pay cut.

It doesn’t have to be this way. In Europe,
significant steps have been made to make part-time work a livable
reality for those who seek it. Denying fair pay and benefits to
part-time workers is now illegal. Parents in Sweden have the right to
work a six-hour day at prorated pay until their children turn 8 years
old. Similar legislation helps working parents in France, Austria, and
Belgium and any employee in Germany and the Netherlands who wants to
cut back. Even Britain has a (comparatively tame) pro-family law
that guarantees parents and other caregivers the right to request a
flexible schedule from their employers. European employers have the
right to refuse workers’ requests, but research shows that very few
actually do. And workers have the right to appeal the denials. . . .

I think that when it comes to setting
priorities for (currently nonexistent) American work-family policy, we
ought to go for the greatest good for the greatest number. The
place to start, ideally, would be universal health care, which is
really the necessary condition for making freedom of choice a reality
for working parents. European-style regulations outlawing wage and
benefit discrimination against part-time workers would be nice, too,
though it’s not a terribly realistic goal for the U.S., where even
unpaid family leave is still a hot-button issue for employers.

A
British-style “soft touch” law could, however, be within the realm of
the possible. Senator Edward Kennedy and Representative Carolyn Maloney
are circulating draft legislation modeled on the British workplace
flexibility law that would give employees — all workers, not just moms
or parents — the right to request a flexible schedule. The legislation
— which would require employers to discuss flexibility with workers who
request it, but wouldn’t require them to honor the requests — has a
little bit of something for everyone: protection from retaliation for
workers who fear letting on that they’re eager to cut back, protection
from “unfunded mandates” for businesses.

I have doubts whether any politically feasible measures would have a major impact aside from helping to bring about a cultural shift that looks more favorably on flexible schedules. This culture is important, as inertia in employers' thinking about these issues seems to be a serious obstacle in this area. For example, OPM has long made explicit that agencies should promote flexible schedules and work locations, but most agencies have resisted employee attempts to make it happen.

I also suspect that, to the extent that a shift may happen, it will come from higher-skilled employees that employers don't want to lose, rather than the lower-skilled work that Warner discusses. When I was at the NLRB's Appellate Court Branch, we had several working mothers doing fantastic part-time work. There was a critical mass of mothers on this schedule and it worked well, in large part because everyone was usually willing to be flexible with everyone else's schedules. The result is that we were able to keep great attorneys in the office.

As Warner notes, however, there are problems. For instance, when my wife went to part-time schedule, she lost many of her benefits. It wasn't a big deal for her, but that's not true for a lot of mothers. My wife's experience also brings up another important aspect of flexibility that Warner didn't touch on. Even before going part-time, she's been a telecommuter and worked completely from home. She's had to make some sacrifices to do this, such as being classified as a contractor and shifting her focus to writing and editing, but it has been the most important factor in her staying at work (and has made her one of my best sources of hypos in class). Moreover, it's worked well for her employer, a federal agency; although they initially had to make some adjustments for her, the only thing they want to change now is for her to come back full-time soon.